from the rethinking dept

Last week, we wrote about the fact that the State of Georgia is suing Carl Malamud for posting PDFs of the Official Code of Georgia Annotated, and sending them around. I've been discussing this with a number of lawyers and other experts over the weekend and have to say that I made a significant error in the original post, which I apologize for. I said that courts frequently rely on the annotations of the law, thus effectively making them a part of the law. This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that's no excuse. I should have checked it out and I did not.

The situation is, admittedly, more complicated. I still believe that the State of Georgia is incorrect both legally and morally in deciding to go down this path, but it is at least slightly more nuanced than the original article suggested, so let's dig in and explore the thinking. The state of Georgia hired LexisNexis to create these annotations, and LexisNexis then assigns the copyright that it receives on those annotations over to the state of Georgia. Part of the deal between Georgia and LexisNexis is that LexisNexis does the work and the state gets the copyright, but then LexisNexis gets to host the "official" copies of the laws of the state, while selling that annotated version (in both digital and paper versions). The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees.

The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright. There is some creative choice in selecting what to cover and how to cover it, though significant parts of it are factual (names of cases and whatnot). As some pointed out, LexisNexis competitor WestLaw also offers its own annotated code of the state and sells it itself, and pretty much everyone is comfortable with the copyright there.

So, what's different here? Well, for one, part of the deal with LexisNexis is that after writing the work, the company transfers the copyright to the state itself. Some have pointed to the fact that under federal copyright law the federal government cannot get copyright on works of its own creation, but that does not really apply here in two separate ways. First, there's some dispute over whether or not those same rules apply to state governments as well -- with many arguing that without it being explicit, states can copyright their own creative works. The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright. And, that's clearly the situation here.

So, yes, it's reasonable to argue that the original annotations should and did receive copyright protection. And it's also reasonable to argue that the state technically still has control over that copyright upon assignment by LexisNexis. From there, however, the legal issues get a bit more cloudy. The state of Georgia still does call the resulting publication the "Official Code of Georgia Annotated." And at the very least, at that point, you have to wonder why any aspect of the "official" laws of Georgia should be covered by copyright. Indeed, as LexisNexis points out on its own site, this "copyright" covered version of the law is "essential" to understanding the law and includes "guidance from the Georgia Code Commission."

The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme

Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia's construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:

Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.

In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an "edict of government," as the US Copyright Office has declared such to be not copyrightable "for reasons of public policy."

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

Given how the state of Georiga touts the OCGA as being "essential" and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the "Official Code of Georgia Annotated" is an "edict of government" and thus "not copyrightable for reasons of public policy."

Even if the courts somehow disagree with that, it would seem that Malamud also has a reasonably strong argument for fair use (though it's not a slam dunk -- but fair use is almost never a complete slam dunk). The "purpose and character" of the use and "the nature of the copyrighted work" would likely lean strongly towards fair use, and I would argue that while the last two factors may lean against fair use, the overwhelming nature of the first two should outweigh that when looked at as a whole. If you recognize that the purpose and character is to "let Georgians understand their own law," then the fact that Malamud released all of it should be seen as appropriate and reasonable, rather than excessive.

Finally, let's take this a step further and say that even if the copyright is legit and that this somehow isn't fair use... there remains a pretty essential question: is this appropriate for Georgia to act this way? The only "public benefit" argument that Georgia has on its side is that this current arrangement with LexisNexis saves taxpayer money, because the state doesn't need to pay to create annotated state codes. But that assumes that the state needs to pay to create annotated code. It's not clear that it does. WestLaw creates its own, and it seems likely that LexisNexis would continue to create its own as well should the state end this particular arrangement. If it's arguing that those wouldn't be the "official" ones, then there's a point there, but a minor one. First, this actually undermines the state's argument somewhat, in making it clear that it thinks the annotated code is really important in understanding the law. If that's true, then it's totally reasonable to spend taxpayer money on it -- just as they spend taxpayer money in paying the legislators who write the code, because that's exactly what taxpayer money is for.

And then there's this simple point: if the state of Georgia really believes this annotated code is so important, then it has a moral imperative to make it freely and widely available, rather than lock it up with copyright, such that only big law firms have a copy. It is essentially setting up a system by which only the lawyers are allowed to fully understand the law, and that's no way to run a government "for the people." That it has decided to not only lock up this code, but then to attack Carl Malamud by falsely claiming he's looking to "control access" to these annotations and to quote him totally out of context in claiming that he's doing a form of "terrorism," is just sickening. If the State of Georgia believes in having an informed public, this whole lawsuit is ridiculous, both from a legal and moral standpoint.

from the er-okay-then dept

If you're a sports fan, you have probably heard about the spate of players in several leagues sporting shirts or else protesting, via planned actions at the start of games, the recent deaths at the hands of police. Everyone from Derrick Rose and LeBron James in the NBA to several football players have gotten into the act. A few weeks back, in fact, we learned that the police in St. Louis, the area home to the Michael Brown shooting, were quite upset that members of the Rams would dare to voice their support for protesters. That story was insulting enough, but the reaction to Cleveland Browns player Andrew Hawkins' wearing of a shirt that simply read "Justice for Tamir Rice - John Crawford", both of whom also died at the hands of police, is downright insulting.

In response, Jeff Follmer Police Patrolman Union President sent newsnet5 the following statement:

"It's pretty pathetic when athletes think they know the law. They should stick to what they know best on the field. The Cleveland Police protect and serve the Browns stadium and the Browns organization owes us an apology."

If this statement from the President of a police union in a major city doesn't boil you up with anger, read it again. It's pathetic when athletes think they know the law? By implication, it's "pathetic" when ordinary citizens believe they "know" the law under which they are governed? The hubris required to insist that the same people you claim to protect and serve are pathetic for thinking they are aware of the legalities of American life runs at levels I truly didn't even think I'd see directly on display. Of course, there are nuances with the legal profession that escape the average American. That's why we have lawyers. But for the reaction to the police shooting two unarmed people (one of them twelve years old) to be to snicker at the thought that the protester knows "the law" is beyond insulting. It's downright stupid.

And what is with the thinning of skin in America's police force all of the sudden that a little protest returns calls for apologies? Grow up. You don't get to wear body armor, drive around in MRAPs, and have skin the thickness of amoeba membranes.

What this ultimately reveals is that many cities in this country have a huge problem in the disconnect between the police and the people they protect and serve. For the lead dog in a police union to snort at the public for daring to "know the law" in such a manor reveals the larger problem: the respect is only going one way, if any way at all.

from the Permeance-vs.-Permission dept

Below are the images and text of a Pecha Kucha talk I gave in Champaign, IL. The Pecha Kucha format is 20 slides x 20 seconds per slide. Hopefully the video will be online within a few months.

You are an information portal. Information enters through your senses, like your ears and eyes, and exits through your expressions, like your voice, your drawing, your writing, and your movements. In order for culture to stay alive, we have to be open, or permeable. According to Wikipedia, Permeance is "the degree to which a material admits a flow of matter or energy." We are the material through which information flows. It’s through this flow that culture stays alive and we stay connected to each other. Ideas flow in, and they flow out, of each of us. Ideas change a little as they go along; this is known as evolution, progress, or innovation. But thanks to Copyright, we live in a world where some information goes in, but cannot legally come out. Often I hear people engaged in creative pursuits ask, “Am I allowed to use this? I don’t want to get in trouble.” In our Copyright regime, "trouble" may include lawsuits, huge fines, and even jail. "Trouble" means violence. "Trouble" has shut down many a creative enterprise. So the threat of “trouble” dictates our choices about what we express. Copyright activates our internal censors. Internal censorship is the enemy of creativity; it halts expression before it can begin. The question, “am I allowed to use this?” indicates the asker has surrendered internal authority to lawyers, legislators, and corporations. This phenomenon is called Permission Culture. Whenever we censor our expression, we close a little more and information flows a little less. The less information flows, the more it stagnates. This is known as chilling effects. I have asked myself: did I ever consent to letting “Permission Culture” into my brain? Why am I complying with censorship? How much choice do I really have about what information goes in and comes out of me? The answer is: I have some choice regarding what I expose myself to, and what I express, but not total control. I can choose whether to watch mainstream media, for example. And I can choose what information to pass along. But to be in the world, and to be open, means all kinds of things can and do get in that are beyond my control. I don't get to choose what goes in based on its copyright status. In fact proprietary images and sounds are the most aggressively rammed into our heads. For example:

"Have a holly jolly Christmas, It's the best time of the year"I don't know if there'll be snow, but have a cup of cheer"Have a holly jolly Christmas, And when you walk down the street"Say hello to friends you know and everyone you meet!" I hate Christmas music. But because I live in the U.S., and need to leave the house even in the months of November and December, I can’t NOT hear it. It goes right through my earholes and into my brain, where it plays over and over ad nauseum. Here are some of the corporations I could “get in trouble with” for sharing that song and clip in public. I wasn't consulted by them before having their so-called "intellectual property" blasted into my head as a child, so I didn't ask their permission to put it in my slide show. Copyright is automatic and there’s no way to opt out. But you can add a license granting some of the permissions copyright automatically takes away. Creative Commons, the most widespread brand of license, allows its users to lift various restrictions of copyright one at a time. The problem with licenses is that they’re based on copyright law. The same threat of violence behind copyright is behind alternative licenses too. Licenses actually reinforce the mechanism of copyright. Everyone still needs to seek permission - it's just that they get it a little more often. Like copyright itself, licenses are often too complex for most people to understand. So licenses have the unfortunate effect of encouraging people to pay even MORE attention to copyright, which gives even more authority to that inner censor. And who let that censor into our heads in the first place? Although I use Free licenses and would appreciate meaningful copyright reform, licenses and laws aren’t the solution. The solution is more and more people just ignoring copyright altogether. I want to be one of those people. A few years ago I declared sovereignty over my own head. Freedom of Speech begins at home. Censorship and "trouble" still exist outside my head, and that's where they'll stay - OUTSIDE my head. I'm not going to assist bad laws and media corporations by setting up an outpost for them in my own mind. I no longer favor or reject works based on their copyright status. Ideas aren’t good or bad because of what licenses people slap on them. I just relate to the ideas themselves now, not the laws surrounding them. And I try to express myself the same way. Like millions of others who don’t give a rat’s ass about copyright, I hope you join me. Make Art, Not Law.

from the and-yet-they-make-judgments-on-this-stuff? dept

There are legitimate reasons to avoid email -- such as Ladar Levison of Lavabit explaining his concerns about privacy. And, certainly, you can understand why some more elderly people have avoided email, though if my late grandmother kept up her emailing well past her 90th birthday, it seems like almost anyone should be able to pick it up. But, it's somewhat disturbing to find out that nearly every Supreme Court Justice hasn't bothered to figure out email yet because they haven't "gotten to" email.

"The justices are not necessarily the most technologically sophisticated people," she said, adding that while clerks email one another, "The court hasn't really 'gotten to' email."

Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.

Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a "chambers aide."

She also noted that Facebook, Twitter and similar services are "a challenge for us."

Though, she does note that when they had to rule on California's law restricting violent video games, a few of the Justices did try some of the games in question, though "It was kind of hilarious."

Sure, old people playing video games, ha ha. Except, as Will Oremus points out, it's really not that funny at all when you realize these nine people are deciding a ton of cases that have a huge impact on the future of technology, innovation and communication. For them not to understand the underlying technologies, how they're used and what they mean is a serious concern:

It does sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance. No wonder they decided earlier this year that the government spying on people’s emails without a warrant is no big deal. Bet they’d have some strong opinions if the NSA started eavesdropping on people’s chambers aides, though.

It's easy for some people to say that you don't have to understand social networking to rule on such cases, but it's hard to support the more you think about it. These tools are key to open and free communications these days. They are the embodiment of what the First Amendment was supposed to be about -- a free marketplace of ideas. Not understanding how they work and how they're used can really skew how they're viewed via the legal prism. And that should be worrisome. We've already seen in a variety of copyright cases before the Supreme Court that they seem to have a near total blind spot when it comes to how copyright interferes with free expression, in part because they still view it through the antiquated filter of "professional" publishers being the ones doing the speaking, rather than the general public using tools to communicate, converse, debate and express ideas.

from the yet-another-interview dept

QCO Artist-in-Residence Nina Paley’s interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina’s answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn’t really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience. And to make it as easy as possible for audience support — including money — to reach you…. Copy restrictionsplace a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of “commons” is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don’t understand what the different licenses mean; they just call all of them “Creative Commons” as if that means anything. CC’s modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn’t work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real “commons,” and an increase of confusion and misinformation.

You can’t really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn’t work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I’ll probably keep using CC-0, of course, but I have no expectation it will work as it’s supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to “protect” their works from abusive exploitation from big corporate players. They don’t realize those big corporate players LOVE the -NC clause, because it’s a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It’s the big corporate players who can afford to license your -NC works. It’s your peers, small players with no legal departments and limited resources, who can’t. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they’ll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn’t sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven’t thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don’t care any more. Let’s just put it out there and see what happens. If something terrible happens because I shared freely, I’ll learn from that. But I think it’s stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don’t want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I’d rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

from the it's-coming dept

So much of what we seem to talk about is really the clash of disruptive innovation and the opportunity it creates with the existing infrastructure (business, legal, physical) and how they seem to clash in ways that tends to limit and/or delay the innovation. Sometimes you can see these clashes coming from miles away -- and autonomous vehicles is one of those clashes. New Scientist has an article by Bryant Walker Smith, discussing the coming clash over autonomous vehicles by asking a simple question: how does a traffic cop give a ticket to a driverless car? Think about it for a bit, and it can be a pretty complex question. While Walker Smith delves into a few of these questions, there are many more -- and lots of people are trying to dig in now.

For example, the law school at Santa Clara University held an entire conference on the legal implications of autonomous vehicles, leading to the Santa Clara Law Review publishing a whole bunch of papers on the subject (including one by Walker Smith). One hopes that lots of people putting some thought into the legal implications today will help us avoid the political messes tomorrow, but given what we know from the history of disruptive innovation, that seems unlikely. Fully expect someone whose businesses are disrupted by autonomous vehicles to make a giant stink about how "unsafe" they are and how they need to be regulated to a degree that makes them effectively impossible to exist.

Not surprisingly, it fits in quite well with our ongoing discussion of the recent RSC paper by Derek Khanna, and more specifically our recent discussions on why it makes little sense to assume that copyright is property in economic terms. As we've noted, it has some property-like attributes and many non-property-like attributes. Ignoring the non-property-like attributes, even though they have vast economic implications, is a huge mistake, and basically means ignoring fundamental economics.

Those posts have led to some interesting (and some less interesting) discussions in the comments. And, in a bit of perfect timing, Brito's latest edition of his "Surprisingly Free" podcast is with law professor Tom Bell and makes one of the absolute best arguments I've heard -- from the legal perspective -- for why it's an absolute mistake to claim that copyright is property, contrary to the claim of some of the amateur lawyers in our comments. Seriously, just listen to the podcast, but I'll highlight a few snippets.

Copyright is not quite like other types of property. It has some similarities, to be sure, but at its root it is fundamentally different than tangible property like fields and houses and cars and computers. And that's because it is non-rivalrous in consumption. Copyright is a special kind of economic good and special kinds of rules should therefore apply to it. Among those rules, you should have those that take into account that you can have too much copyright....

That, of course, is really no different than what we've said for a while. It has property-like attributes, but many non-property like attributes as well. Brito then makes the argument that copyright is a form of property, and then Bell highlights a few more differences about where copyright originates legally speaking, and also highlights some similarities.

I don't want to get into a semantic discussion, but I am not completely comfortable with calling copyright property. Simply saying property. I don't even like the phrase intellectual property. I prefer intellectual privilege. I think copyright is a privilege, because it's created by statute, it doesn't exist in a state of nature, it's not recognized by common law. It's purely the creature of statute and you can't say that about the sorts of property rights we enjoy in our persons and in our farms and our cars and computers. Those rights, the rights in those forms of tangible property... you can't deny they're protected at the common law. And many people, me among them, would say that they're protected in a state of nature....

Important ramifications follow from what you call copyright. Me? I like to say it's a privilege that has certain property-like aspects and indeed the best things about copyright -- and there's a lot to like about copyright -- are those features that most resemble property. It's alienable, you can transfer it to other people, you can go to the copyright office and check to see who owns the copyright. There is something like trespass afforded to people who suffer wrongful use of their property. Wonderful things. That's the best thing about copyright.

Brito points out, in response, that there are other "intangible" forms of property, naming taxi medallions and tradeable emissions permits. Bell points out that those often are not considered property.

I was just talking to someone who works out here in Southern California in the local regional air quality control board, and we got into this conversation, and he said "we don't call them property, we don't even call them privileges, we call them permits" I said "well you can buy and sell permits" and he said "there are some things that are like property, but we don't call them property, because we don't want the state thinking, for example, we can't change the rules without suffering a takings claim." And that's true of copyright as well. Look, if Congress decides tomorrow, that we're going to just stop copyright -- they won't, but they might say, per some of the suggestions, of our reformers in our book -- we're going to tinker around the edges, and maybe, just once, around the edges, trim back the restrictions. If they did that, would they face a takings claim? No, no! It's just not part of common law...

This is interesting, because I had actually believed that copyright likely would be covered by a "takings" claim (i.e., a prohibition under the 5th Amendment on "taking" away some property). But as Bell notes, since copyright is not subject to common law, it seems wrong -- and to him, preposterous -- that it would be subject to a takings claim. Of course, just watch: I bet if copyright is trimmed back, the entertainment industry will bring a case under this very theory.

Bell then goes on to point out why, if such a "takings" claim was allowed, there would be a pretty big Constitutional problem very quickly. And it stems from the "limited times" clause under copyright. You'd have a bit of a conflict there, wouldn't you?

Let's recognize, that if you take that approach to copyright, you pretty quickly run into a tough paradox. And it's that the Constitution, says that "only for limited times" shall lawmakers protect these works of authors. So if you're a fan of real property, intangible property, as I am, you don't want to hear about lawmakers saying "we're putting a fuse on your property rights in your house or your car or your computer. We're going to let you have property rights for, oh, maybe 20 years and then 'poof' it's gone, anybody can take it." No, we would take exception if the federal government said that policy with regard to our 401ks or our houses or cars, and for good reason. Yet that's the policy we have copyrights, and it's by design. It's in the Constitution. It's as if the Constitution had a clause that said 'oh also, property rights in your farms and factories and houses -- yeah, we're going to end all those after 34 years.' That's not how they treat tangible property. We're glad of that. And yet that is how we treat copyright and I think we should be glad of that.

From there, Bell goes on to talk about the recommendations he makes in the book for how copyright should be reformed -- and he definitely goes pretty far out there with them:

Reinstate the Founders’ Copyright Act,

Withdraw the U.S. from the Berne Convention,

Develop misuse doctrine into an escape from copyright,

Focus copyright policy on consumers’ costs, not producers’ profits, and

Reconceive “IP” as “Intellectual Privilege.”

The discussion on those is very interesting, both in the book and in the podcast. I won't spoil it all for you yet, but I will say that, yes, he's talking about going back to what copyright law was in 1790 -- meaning that it only lasts for two 14 year terms, and that it should cover only "maps, charts and books" since that's what the founders intended. Also, infringement only happened if you copied the entire thing. Copying a section was fine. Interestingly, Bell's next book (also published by Mercatus) will apparently be published under those exact terms. As for why other things shouldn't be covered, well, he notes that the founders didn't appear to think such expressive works like music, painting and sculpture required copyright, and it's not clear why that should have changed.

There's also the "misuse" doctrine aspect, which is fascinating, in that he thinks it could act as a form of "training wheels" for a world without so much reliance on copyright:

How can misuse doctrine open an escape from copyright? The
doctrine bars claims of copyright infringement that arise under
conditions of misuse. It does not, however, bar claims premised
on violations of common-law rights, such as trade secrets or the
contractual terms of a license. In effect, misuse doctrine corrects
the overweening power that results from combining copyright
privileges with common-law rights, by negating only the former.
Suppose for instance that a copyright holder wrongly tried to squelch
rights protected by the First Amendment and the fair use doctrine
by including in its license a clause forbidding public criticism of
the work. A court might remedy that misuse by denying the considerable enforcement powers afforded by the Copyright Act even
while leaving the underlying contract in force. In practical terms,
the dispute would become a matter of state contract law rather than
federal legislation. Repeated applications of the same doctrine in
other cases would eventually encourage the development of business models premised solely on contract law, tort law, trade secret
law, and other common-law devices. Misuse thus opens an escape
from a world where copyright comprehensively regulates access
to expressive works to one where only common-law rules apply

I'm not sure I fully agree with that -- and I can actually see how contract law could create a worse scenario (in which things like fair use, first sale, etc. would not be allowed). But it is a thought-provoking discussion.

One other point that was quite interesting. Bell argues that when you claim that copyright is "property" you actually harm real property rights, because things like fair use, first sale and other such "exceptions" suggest that it's equally fine to create similar exceptions to real property, and that's a road that we shouldn't want to travel down.

If you'd actually like to see that discussion live and want to see some sparks fly, the Cato Institute is hosting a discussion of the book with Brito and Bell, and moderated by Jim Harper... but also with the RIAA's Mitch Glazier to (I am guessing) argue strongly against all of this. I imagine that ought to be entertaining, and it appears they'll be streaming the whole thing live online, Thursday at noon ET, 9am PT. Should be a fun time.

from the one-way-to-do-it dept

Lawyer/law professor Mark Lemley has argued for years that, even as there are very clear problems with software patents, the answer is not to merely exclude software from being patentable. I tend to agree. I think it's pretty clear that the problems with the patent system go way, way beyond just software, and as such, excluding software from being patentable would actually leave many serious problems with the patent system in place -- with little interest left in fixing them. I'd rather fix the big problems across the board then look for carve-outs and "exceptions." I've made many suggestions over the years for changes that I think would really help to fix the patent system, and Lemley has regularly argued that we don't even necessarily need a change in the law. His book from a few years ago, The Patent Crisis and How the Courts Can Solve It, as you can tell from the title, argued that the courts can fix the system without a major change to the underlying law.

Lemley recently released a new paper, arguing that the problem of software patents can be dealt with by properly applying the 1952 Patent Act's limitation on so called "functional claiming." Simon Phipps, over at Infoworld, has an absolutely fantastic summary of Lemley's argument, though I recommend reading Lemley's paper itself as well. The short form of the argument is that under the 1952 Act, there are significant limitations on patent claims that cover a "function" rather than a specific solution. Phipps does an excellent job summarizing the broad concept of functional claiming:

When we say patents protect inventions, what we mean is they protect specific solutions to problems, rather than the idea of solving a particular problem. The design for a plough can be patented; the idea of ploughing a field can't. A specific new drug that stops a headache can be patented; the function of using a drug to stop a headache can't. Lemley explains how patent applications were increasingly written to go outside these bounds, culminating in a case in the 1940s where a judge finally declared patent claims that attempted to fence off a function -- "functional claiming" -- as an invalid use of patents.

However, the 1952 Act brought back functional claiming -- but with very specific limitations, found in 35 USC 112(f):

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Now, this may sound confusing, but as Lemley (and Phipps) explain, it really limits the ability to claim a "function" to a very narrow set of circumstances. Lemley provides an example of how "functional claiming" works with and without 112(f) and why it's very limited with it:

To take an example, suppose that the patent claim includes as an element a “means for processing data.” Read literally, without reference to section 112(f), this language would encompass any possible means for processing data, including any computer, but also a calculator, an abacus, pencil and paper, and perhaps even the human brain. Section 112(f) permits the use of such functional language, but doesn’t permit it to cover any means of performing the data-processing function. Instead, the claim would be limited to the particular “means for processing data” actually described in the patent specification (say, an iPad) “and equivalents thereof.”

In other words, if you're going to claim a function, you only get to do so in the very narrow spectrum of the "means" for which your patent applies.

Now, the problem: in the computer age, patent lawyers have realized that if they effectively show "a computer" as "the means" then they can really go back to claiming the full function, rather than the very limited function.

A patentee who claims “means for calculating an alarm limit” is invoking the limits of section 112(f), and the claim will accordingly be limited to the particular software algorithm or implementation the patentee described in the specification. But if the same patentee claims “a computer programmed to calculate an alarm limit,” courts today will read the term “computer” as sufficient structure and will understand the claims to cover any computer that can calculate an alarm limit, however the calculation is programmed.

He goes on to note a bunch of examples of the loose way that the system is defined to make software patents ridiculously broad, so they effectively go back to claiming a patent on the basic function. So you see things like "in a dating processing system," "a computer system," "a computer readable medium," "over the Internet," "one or more processors of a computer system" and so forth in patent claims. But given that pretty much everything is done "on a computer," it should come as little surprise that these patents, which should be really limited, actually do end up claiming very broad functionality for things like... sending email, or having a shopping cart, or having a web page "bounce back" when you hit the bottom.

Lemley argues that if we actually went back to what was clearly intended with the limitations on functional claiming, we could fix the problems associated with software patents. How would we do that? Easy: require that those filing software patents also submit their source code, and the patent should "be limited to those algorithms and equivalents thereof."

We don’t need to change the statute to achieve this result. We don’t even need to overrule existing cases. We just need to pay attention to a law that is on the books but doesn’t seem to get applied in practice. The Federal Circuit or the Supreme Court could, with one fell swoop, do away with most of the problem of overclaiming in software patents – and with it, most of the problems with software patents in general. All it needs to do is to take the statute at face value and limit functional claims to the particular way the patentee implemented that function. In the software world, the way an inventor implements a function is not with “a computer” or “a processor,” but with a particular computer program. The patent claim should accordingly be limited to that particular computer program, and ones that work in the same way to achieve the same result.

Lemley points out a side benefit to having the courts just recognize this, rather than changing the law. If the courts go back to interpreting the law this way, then it applies across the board retroactively. As Lemley says, "the idea is that the law hasn't changed; we simply understand it better."

Is such a "solution" possible? It's certainly possible. Phipps quotes lawyer Andrew Updegrove, who notes that the theory just needs to be tested in front of a judge who understands the details:

What we need now is a case that presents an appropriate opportunity for Professor Lemley's argument to be presented, and a judge that is willing to accept it.

I would imagine that it won't be long before we begin to see some test cases. It may be years before they work themselves through the court system, but hopefully judges at the upper levels can read and understand Lemley's paper in the interim...

from the creating-for-fun-not-profit dept

Fan fiction is one of those areas that treads that fine line between what some people find to be fair use and others find to be infringing. These derivatives of the original work often take form in ways that the original creators did not intend, expect or find reasonable. When it comes to some creators, fan fiction is something to be embraced, but some also feel that it violates their copyright. So with such murky water in this area, how are fan fiction writers to know if their creative work is fair use? This is where Rebecca Tushnet comes in with an interview with Reason.

In this interview, Rebecca highlights the ways in which many companies have accepted fan fiction and other fan created derivative works as a necessary part of getting consumers to engage with the content.

It takes a big studio to make The Avengers, but it doesn't necessarily take a big studio to write a piece of Avengers fan fiction. Big content companies largely recognize that fan activities are really good for them because they engage people.

Additionally, Rebecca is a member of the Organization for Transformative Works, which helps fan fiction creators understand their legal rights and defend themselves in those cases where the original creator seeks to take down such works—something that happens far too often, even when the creator has shown support in the past.

Regardless of the potential legal ramifications, creators need to realize just how much of a cultural impact their works have on their fans. As people grow to love certain works, they seek to express that love by creating and distributing content that they feel expresses their fondness for it. What we shouldn't see, and what makes this organization so important, is creators lashing out at fans for being fans. Think about how ridiculous that sounds. Why would anyone want to punish a fan for nothing more than loving the original work or artist? Sadly, ridiculousness is not above the mindset of many people and companies. However, by embracing such fan creativity, not only are you fostering the overall community and culture that surrounds your work, but you are also allowing real and powerful growth. As more people find your work through derivatives, they will seek to support you as well.

from the easy-to-amend dept

We've discussed many times how the censorship provisions of SOPA and PIPA require US companies to set up a system that is technically identical to internet censorship systems in countries like China and Iran. This always upsets supporters of these bills, because they prefer to focus solely on what's being censored, with the argument being that as long as the target of the censorship is infringement, rather than, say, political speech, it's okay. I've had two different arguments for why that line of thinking is ridiculous. First, while the bill may target infringing works, it will, without doubt, end up censoring tons of non-infringing works, as with the Dajaz1 seizure. The second point is that countries have a history of censoring political speech under the guise of copyright law. So, even if the intent is not to censor political speech, we have enough examples of it happening that it seems like a perfectly legitimate point to raise.

However, Julian Sanchez has taken this discussion even further, and pointed out an additional reason that we should be quite worried about the censorship portion of the bill. Even if it's only designed to be used for stopping infringement, we'll have now set up the legal framework for censorship, meaning that it will be quite easy to expand the law to cover other forms of expression:

With the legal framework in place, expanding it to cover other conduct—obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups--would be a matter of adding a few words to those paragraphs. One sentence slipped in as a rider on some must-pass omnibus bill would do it: “Section 102(2)(B) is amended to add ‘or civil action under 17 USC §271′.”—voila, a nuclear weapon for patent trolls.

And it's not just the legal framework and architecture he's worried about. Once DNS providers are set up to easily censor sites at the drop of a hat, does anyone honestly believe that the government and the courts won't be tempted to just use it in other cases outside of what's covered under SOPA/PIPA?

Then there’s the technological architecture. If SOPA passes, thousands of commercial ISPs, colleges, small businesses, nonprofits, and other entities that maintain domain servers are going to have to reconfigure their networks, potentially at substantial cost, in order to easily comply with the new law. There is an introductory clause in the latest version of the bill stipulating that no network operator will be required to implement a specific technology or redesign their networks in any particular manner in order to be considered in compliance. But let’s think realistically about what compliance will look like. Genuine “rogue sites” often operate via dozens of different domains, which means we’re apt to see regular updates to the government’s standing blacklist, potentially adding dozens or hundreds of domains in one go. Any sane network operator is just going to build a filter that reads off the current list of banned domains from a government feed and automatically stops resolving them. (This will, incidentally, be an enormously attractive attack surface for hackers: Spoof the SOPA feed—either at the source or to a particular provider—and you’ve got an instant bulk denial of service attack!)

Once the up-front costs of implementing that filter mechanism are paid, the marginal cost of additional censorship is effectively zero for the providers. It won’t much matter to the providers, at that point, whether the blacklist contains 10 domains or 10,000. The technology itself, needless to say, will be indifferent to the rationale for blacklisting. The filter will just automatically implement the list of domains it’s given; it won’t know or care whether they’re being blocked for hosting pirated movies, Hamas propaganda, or the Pentagon Papers.

And, as Sanchez notes, once you've got those two pieces in place, the broadening of US censorship online is almost inevitable, because the "cost" of doing so becomes so low:

Political actors—or special interest groups—who want to expand the scope of blocking will no longer have to justify putting in place a wholly new system of Internet blocking. Instead, the rhetorical question will become: Now that we’ve got this whole filter architecture in place for music and movie pirates, how can we possibly justify not using it for sites that host terrorist propaganda or classified documents, for sites that implement a patented business model without permission, for sites enabling speech some U.S. court has held libelous, and for whatever new moral panic is gracing the cover of Time in five years. Surely you’re not suggesting that illicit downloads of Norbit are a bigger problem than whatever outrage Joe Lieberman is fulminating against this week, are you?

This is a major concern with SOPA/PIPA, and one that supporters of the bill keep trying to brush off, because they have no good answer to these concerns other than "trust us, the US government doesn't want to censor." I'd like to believe that's true. In fact, it very likely is true for many people in the government. But the scenarios Sanchez predicts are not out of line with what we already see regularly today. It happens so frequently, in fact, that it's difficult to imagine how Congress won't expand the law to make use of this censorship apparatus.